(the "Company")

-and -

(the "Union")

SOLE ARBITRATOR: M. G. Picher

A hearing in this matter was held in Montreal on September 11, 1989.

The nature of the dispute giving rise to this grievance is succinctly stated in the Company’s brief as follows:

The facts of this case are not in substantial dispute. At the time of his accident the grievor had two and a half years of service with the Company as a boilermaker at its shops in Pointe-St-Charles, Quebec. It is common ground that on October 20, 1986, Mr. Drummond suffered injuries to both knees while working on a locomotive. On that day the accident was reported to the first aid attendant and on October 22, 1986, upon further reporting the facts to his foreman, the grievor was sent by the Company to the Royal Victoria Hospital for examination. He was then diagnosed as having contusions to the knees and instructed to remain off work for four or five days. There followed a period of further examinations and extensions of the grievor’s absence from work. In November, December and January the diagnosis appears to have changed to "synovitis right knee". On January 9, 1987 the report of Dr. Fish indicated a post traumatic synovitis knee with an estimated date of consolidation of January 12, 1987. "Consolidation" in the sense used means the point of stabilization of an injury beyond which no substantial improvement is contemplated.

Mr. Drummond returned to work for a period of four days commencing January 12, 1987. The grievor remained off work from that date until July 20, 1987, during which time he made a successful claim for the continuation of Workers’ Compensation payments.

In June of 1987, while the grievor was still absent from work and in receipt of Workers’ Compensation benefits, it came to the attention of the Company that he had been observed playing in an organized softball league. Direct observations of the grievor playing softball, apparently at the position of shortstop, were made by the Company on June 4, 11, 18 and July 9, 1987. On the last three occasions, Mr. Drummond was videotaped during the softball games. The videotapes, viewed at the arbitration, show him playing shortstop with the normal type and range of movement associated with that position; they also show Mr. Drummond running the bases without any apparent restraint or difficulty. During the game of July 9, 1987 the grievor wore a head protector and mask, it being common ground that he then had a broken nose sustained while standing on the sidelines during a softball game.

On June 18, 1987 Dr. Robert Saint-Hilaire, an orthopaedic surgeon, reported to the Company’s claims department that following a full examination, in his opinion, the grievor was fit to return to normal duties. At that point Mr. Drummond appears to have been observed playing softball on two occasions, June 4 and 11, 1987. While the precise sequence of events is unclear from the material before the arbitrator, it does not appear that the Company did anything to immediately pursue Dr. Saint-Hilaire’s recommendation. The material in the file, however, suggests some confusion at the time. It appears not disputed that on June 16, 1987, apparently one day prior to being examined by Dr. Saint-Hilaire, Mr. Drummond reported to another physician, Dr. Krasny, that there was no improvement in the condition of his knees, that the pain was still present even when sitting and walking and that "there was absolutely no question of running". According to the grievor’s own statement, he was next advised by Mr. D. Coderre, an employee relations assistant at the Point St. Charles shop to come in and speak with him on July 10, 1987.

On July 13, 1987 Mr. Drummond provided the Company with a written and sworn statement which includes the following:

On July 20, 1987 Mr. Drummond returned to work having been advised by Dr. J. Violette that he was to avoid too much standing and walking and to climb no ladders and stairs. On September 3, 1987 the Company conducted an investigation, with due notice to Mr. Drummond respecting his claim of medical incapacity. During the early part of the questions put to Mr. Drummond he confirmed the assertions made in his sworn statement of July 13, 1987. When initially asked whether he belonged to any sporting teams in the period from October 20, 1987 to July 20, 1987 Mr. Drummond responded that he was a member, "but I did not play". He further repeated his assertions that he had not played softball and that he had broken his nose at home. When confronted with the fact that he had been observed by a Company claims agent playing softball on June 4, 1987, Mr. Drummond responded that he was only acting as team manager. With respect to the incident of June 11, he conceded that he may have tried to play "… but it hurt too much …". When he was ultimately confronted with the full evidence of the videotapes of his softball activities the grievor finally admitted the truth, offering the explanation that he felt that playing softball would be therapeutic for his knee condition.

It is trite to say that as an employee Mr. Drummond owes a duty of fidelity to his employer. It is not disputed that all of the physicians who examined and treated Mr. Drummond did so at the behest of the Company and were, to some degree, agents or representatives of the employer for the purposes of determining Mr. Drummond’s fitness to work. The material discloses beyond controversy that on more than one occasion Mr. Drummond either withheld information from the doctors and the Company’s officers or deliberately misled them with respect to his day to day condition, most particularly with respect to the kind movement of which he was capable. This culminated in Mr. Drummond’s own sworn statement made directly to Company officers on July 13, 1987 to the effect that he had been unable to participate in any sports, had substantial difficulty walking and that there was no question of running during the entire period of his claim for Workers’ Compensation benefits. As the record discloses, this was manifestly false.

The Union admits that the grievor did play softball as established above, and that in fact he also played hockey during his period of convalescence. It argues, however, that these activities were not surreptitious, as other Company employees played in the same leagues as Mr. Drummond. Its counsel further points to the fact that an appeal by the Company of the grievor’s compensation claim was rejected by the Worker’s Compensation authorities. The decision of the CSST, dated April 3, 1988 asserts that there is no dispute about the initial injury to Mr. Drummond, finds that there is no evidence his athletic activities hindered his recovery and concludes that his claims for compensation are meritorious. That decision is now under appeal. Counsel for the Union submits that the decision of the Workers’ Compensation authorities, and the undisputed fact that Mr. Drummond did suffer a work-related injury, and was at ail times under the care and assessment of Company appointed doctors, justify the Union’s position that his discharge was not justified in all of the circumstances.

With that conclusion the Arbitrator cannot agree. The issue in these proceedings is not whether Mr. Drummond is or is not entitled to Workers’ Compensation payments within the terms of the appropriate legislative scheme. Whether Mr. Drummond defrauded Workers’ Compensation authorities is an issue for tribunals other than this one. At issue in the instant case is whether Mr. Drummond misled his employer with respect to the nature of his physical condition and his purported inability to return to work in a manner that would justify the assessment of discipline against him. Secondly, if the first question is answered in the affirmative, the appropriate measure of discipline must be considered.

In approaching these issues it must be emphasized that much of the injuries suffered by Mr. Drummond involve what may be described as subjective symptoms. To a great degree the pain, discomfort and inability of movement which he described was not something which could be verified objectively by medical evidence. The doctors who examined Mr. Drummond on behalf of the Company were, in other words, required to rely to a great extent on his description of his own condition, including his own ability to move and pursue certain activities such as standing, walking or running. It would appear that the grievor clearly lied to Dr. Krasny, if his own sworn statement of July 13, 1987 is to be believed. The net impression of that account is that when he visited Dr. Krasny, at a time when he was actively and regularly playing softball, Mr. Drummond conveyed the impression that he was in pain even when sitting and walking and that there was absolutely no question of running. That falsehood is compounded by the grievor’s sworn statement, as well as the initial untruthful assertions of Mr. Drummond’s first portion of his answers to the Company at the investigation of September 3, 1987.

With the greatest respect to Counsel for the Union, the issue in the instant case is not whether the grievor’s sporting activities aggravated his condition or hindered his convalescence. It is whether he has deliberately sought to mislead his employer in matters pertinent to its interests, including his availability to resume working. In the Arbitrator’s view the conclusion is inescapable that he has, and that he has done so knowingly and without colourable excuse.

In considering the appropriate measure of discipline there are few factors that weigh in the grievor’s favour in mitigation. As noted, the factual falsehood perpetrated upon the Company’s officers, and apparently upon the medical practitioners reporting to it, was sustained over some period of time. The fact that other employees of the Company, who may or may not have had any detailed knowledge of the terms of the grievor’s leave of absence, were aware of his sporting activities is neither here nor there. Lastly, he is an employee of relatively short service, having been hired in 1984. In all of the circumstances the Arbitrator can see no reason to disturb the decision of the Company to impose a penalty of discharge in the instant case. For these reasons the grievance must be dismissed.

DATED AT TORONTO, this 20th day of September, 1989.

Arbitrator